Mr. Woodhouse sighs to his daughter Emma “One
half of the world cannot understand the pleasures of the other.”
When I think of how I’ve been looking forward to this weekend,
I think of this dear old gentleman’s remark. When our charming
chairman, Mary Millard, telephoned me early last spring to ask me to
speak to the Jane Austen Society of North America about her knowledge
of the law, I was standing in my partner’s office, watching the
sun sparkle on Lake Ontario. As I spoke with her, thoughts of first
year property law lectures on land entailments, remaindermen, the fee
tail male, the statute of Quia Emptores
danced through my head, and I instantly agreed. My partner who
happens to be my brother, who also happens to be an English major,
who also happens to be one of my former high school English students,
turned white with shock, raced down the elevator to the bookstore
below, and came back with a copy of Sense
& Sensibility. He intoned to me
the first page which, of course, deals with the entailment of the
Dashwood estate. “No problem,” he said, “but
remember, October will soon be here, and your field is Victorians.”

When
the advance programme for this weekend arrived, I wondered how a late
20th Century lawyer could arrange to have the vapours on a date to be
fixed – No excuses of being called to a higher court –
Just prepare for trial. And what an interesting time it has been! I
do hope I can dispel the general impression modern readers have that
Jane Austen’s characters and plots depend on settled estates,
entails, and inheritances. She knew so much about so many areas.
How was that possible in her sheltered life in the country?

The last half of the 18th Century saw the rise of the legal
profession – Power was shifting from the pulpit to the bar. As
a clergyman’s daughter, she had access to her father’s
library, was taught by him along with the pupils he took into his
home to educate, and along with her fashionable passion for novel
reading, we know she admired Addison’s newspaper, “The
Spectator,” and his essays in “The Tatler” and read
Fielding and Goldsmith, all of whom wrote about law and the court
system. Sir Walter Scott was a Scottish judge.

We must remember that at one time the administration of justice and
the practice of advising litigants and of advocacy was in the hands
of the clergy. Indeed, for a time it seemed not unlikely that the
universal church courts and church law would carry the day against
the local courts and the local law. Naturally the clergy did not
relinquish the practice of the law without a protest. When the new
rival, the lawyer, pushed them out, one after another, of the great
offices of state, the clergy became professionally concerned at this
supercession, and were naturally disinclined to be forced to confine
their attention to the less-immediately-profitable calling of
preparing for the world to come.

By the beginning of the 19th Century, the sceptre
of justice had passed from the clergyman to the lawyer. As
increasing complexity demanded specialization, the need grew for far
more certainty in transactions and for greater detail of legal rule.
The clergy viewed this rise of law and consequent rise of the lawyer
as a triumph of the material over the spiritual, a sacrifice of
justice and right to the greed and craft of a parasitic class.
Sermons of the first half of the 19th Century are full of this, and
nothing but the inexorable operation of economic conditions that
demanded law enabled lawyers to overcome this violent hostility to
their profession. Jane Austen views the law through the eyes of the
clergy – there are no lawyer heroes in her work – (the
dreadful Mr. Palmer in Sense &
Sensibility is a politician) –
only boring Mr. John Knightley in Emma,
whose profession was seen merely as an inconvenience by his
father-in-law, Mr. Woodhouse: “Mr. John Knightley’s being
a lawyer is very inconvenient.” He didn’t see enough of
his daughter or grandchildren, and to Emma, John Knightley’s
reserved manners prevented his being generally pleasing; and he was
capable of being sometimes quite out of humour.

In Jane Austen’s day, the courts of common
law (the Queen’s Bench, based on Roman law) and equity
(Chancery, based on canon law) were still separate. It was not until
1875, when as a result of the Judicature Act, 1873, that a single
Supreme Court of Judicature was established, each branch of which had
full power to administer both law and equity. The three divisions
were the Queen’s Bench, Chancery, and the Probate, Divorce, and
Admiralty with its rather miscellaneous jurisdiction over wills,
wives, and wrecks as Sir Alan Herbert put it. (Glanville Williams,
Learning the Law,
p. 14.)

The word “estate” has several common
meanings to us. It can mean the real and personal property a person
leaves to his beneficiaries when he dies; a beautiful home and
surrounding acreage in the countryside; or an interest in land. Jane
Austen uses all three meanings in the novels, but the most important
is her usage to define a settled interest in land created either
inter vivos
(i.e., by a deed of trust while the settlor is still alive), through
his will upon death, or by purchase.

In actual law, the land itself is not the subject matter of
ownership, though the person who is possessed of it (i.e., seised it)
is entitled to exercise proprietary rights in respect of it. The
person entitled to seisin (possession) owns an abstract equity called
an estate, which is interposed between him and the land. The estate
represents the extent of his right to seisin, and estates vary in
size according to the time for which they are to endure. On this
basis they are classified as estates of freehold and estates less
than freehold. Secondly, several different persons may
simultaneously own distinct and separate estates in the same piece of
land.

The classification of estates depends upon their duration and the
estate will vary in size according to the time for which it is to
endure.

A freehold estate is an estate of uncertain
duration, and can be inherited in fee simple – i.e., to “A”
and his heirs, (“fee” meaning it is inheritable) and this
estate will last as long as the person entitled to it for the time
being dies leaving an heir and therefore it may last forever in the
sense that it may never pass to the Crown for want of an heir.
“Heir” here means general heir, ascendent, descendent, or
collateral, (i.e., Lady Catherine de Bourgh in Pride
& Prejudice is a female heir, not
specifically prevented from inheriting for want of being male.)

An estate in fee tail, which is the only other estate of inheritance,
is less than a fee simple since it is inheritable only by the
specified descendents of the original grantee and never by his
ascendents, and also because it is descendible only to his lineal
issue and not to his collateral relatives. Thus it is inferior to
the fee simple in the sense that it has not as great a capacity for
perpetual existence. The classic formula for creating this is “to
‘A’ and the heirs of his body.” It can be further
narrowed down to a fee tail male – only to male heirs.

Life estates include an estate which “A”
holds for his own life, and also that he holds during the lifetime of
“B,” this second species being called an estate pur
autre vie.

The settling of estates by entailing the
inheritance of land is a recurring topic in the novels. As I
mentioned, in Sense & Sensibility,
Mrs. Dashwood and her daughters were forced to leave Norland Park
upon her husband’s death because her stepson inherited all the
real property; in Pride & Prejudice,
it is Mr. Collins who is to receive the Bennets’ Longbourn
home, for want of a Bennet son, thus uprooting his widow and
daughters. (Mr. Collins has an actual interest in the estate during
Mr. Bennet’s lifetime.) However, Rosings passed to Lady
Catherine de Bourgh, the estate, as mentioned before, not being
entailed away from the female line.

The possibility of Mr. Knightley marrying Jane Fairfax sent tremors
through Emma, as she thought of her eldest nephew losing Donwell.
“Mr. Knightley and Jane Fairfax! Dear Mrs. Weston, how could
you think of such a thing? Mr. Knightley! Mr. Knightley must not
marry! You would not have little Henry cut out from Donwell? Oh no,
no; Henry must have Donwell. I cannot at all consent to Mr.
Knightley’s marrying, and I am sure it is not at all likely. I
am amazed that you should think of such a thing.”

In Pride &
Prejudice, Mr. Bingley’s father
died before he could purchase an estate and left his son close to
£100,000, so Netherfield was a leased property. The Bingley
sisters possessed a separate fortune of £20,000. We are
reminded, of course, that though the family was respectable, the
fortune had been acquired by trade!

Jane Austen was herself personally involved in an
estate controversy through her brother, Edward. As you know, Edward
Austen had been adopted by Thomas Knight, a distant Austen
connection, who had no children of his own, and owned the estates of
Chawton House in Hampshire and Godsmersham Park in Kent. Edward
became the heir to Mr. Knight’s property. We see this same
relationship recur in the Frank Weston Churchill relationship in
Emma.
Edward, in due course, inherited Chawton and Godsmersham and adopted
the name of Knight. Edward had 11 children, including 7 sons. The
annual income of Godsmersham was £5,000; and of Chawton,
approximately £10,000. Two years later, a Knight relative
challenged the document deeding Chawton to Edward who finally settled
the suit by paying a large sum in order to retain the estate. This,
coupled with their brother Henry’s bankruptcy in 1816, caused
by his firm’s financial backing of the bank at Alton, brought
Jane very close to the details and realities of the financial world,
although her individual loss in the bankruptcy was minor, about £10.

The Knights were connected to the Rev. George Austen; the Leighs were
Mrs. Austen’s family. Lord Leigh’s curiously worded will
left, in 1806, to the Reverend Thomas Leigh, Rector of Adlestrop, an
immense property, Stoneleigh Abbey in Warwickshire. Other members of
the Leigh family contested the will, including Mr. Leigh Perrot who
settled for a lump sum of £24,000 and £2,000 per annum.
Mr. Leigh Perrot died in Jane’s last year, leaving a curious
will, as well. Wealthy and childless, with Jane’s mother his
only surviving sister, one would expect his sister and her children
to be provided for. Yet he left everything to his wife, save for a
considerable sum to Jane’s brother, James, with £1,000 to
be inherited by each nephew and niece who survived his wife.

Estates,
settlements, trusts, wills were the everyday stuff of life to Jane
Austen. The novels are sprinkled with references. Nary a character
is introduced without his or her fortune and annual income clearly
stated, and admired or pitied accordingly. It is not enough to say
women didn’t work; the men didn’t either, other than to
manage their estates or investments, or to become men of the cloth,
soldiers, or sailors. Women could be teachers or governesses, Jane
Fairfax’s fate worse than death; people in trade or farmers
were of the lower echelons. How fortunate it is that Harriet Smith’s
father turned out to be in trade, so that she didn’t have to
lower herself, though illegitimate, by marrying Farmer Martin! It
was not until the mid-19th Century that jobs for gentlewomen
expanded, as technology kept on inventing machines designed to save
labour, which required more and more labour to operate them.

Critics who denigrate Jane Austen’s obsession with money, men,
and marriage and argue that today she would not be as limited or as
concerned with these topics, and feel that the broad expansions of
women’s legal rights in the last century have led their
interests elsewhere, are simply not correct. Jane’s views are
as fresh today as they were current then. During International
Women’s Year, I had occasion to be invited to a dinner party
given by a well-known Canadian writer. Her guest list was comprised
of women in the professions and the arts. Guess what the
after-dinner conversation consisted of? We could have been in Mrs.
Bennet’s drawing room.

Historically at common law, infants, women, married or single, and
mental incompetents were lumped together as persons in need of
protection. It was not until the Married Women’s Property Act
of 1882 that married women had the right to deal with their own
property. Husband and Wife were one person and under this doctrine
of unity, that person was the husband. He became absolute owner
other personal chattels, could dispose of her leaseholds, and control
and manage her freehold estates. He was the complete master of his
wife’s property, and she was deprived of contractual capacity.
Mr. Wickham and Georgiana Darcy, Mr. Willoughby’s choice of
Miss Grey, as his wife, even Mr. Collins settling for Charlotte Lucas
show they knew how to succeed in business without really trying.

How
did a father protect his daughter from fortune-hunters? By providing
in pre-nuptial settlements that her property was to be for her sole
and separate use, and including what was known as a restraint upon
anticipation. The woman could enjoy the income, could devise the
property by will, but could not sell or mortgage it while she was
married. This restraint, developed in equity at the end of the 18th
Century, protected the wife against the solicitations of her husband
or her own natural inclination to surrender her beneficial enjoyment
of the property to him. It also, by coincidence, protected her from
her own creditors as well as his. As late as 1765, Blackstone
expressed the opinion: “Even the disabilities which the wife
lies under are for the most part intended for her protection and
benefit, so great a favourite is the female sex of the laws of
England.”

A married woman could not bind herself by contract. If his wife
contracted debts before her marriage, the husband was liable for them
whether he knew of their existence or not, regardless of whether he
obtained any property from his wife on marriage. While she could
charge her separate property with her contracts, she could not make a
contract while she was married which would bind her personally.

As settlements of land frequently left property to an elder son for
life, then entailed to his elder son, and so on and so forth,
provisions were also made for income to widows, daughters, etc., and
these became the charges on the estate. These were frequently
onerous charges which had to be paid and which could create financial
difficulties for the heir who could not dispose of the property.
Virtually, every character in the novels has an annual income, large
or small, whether by inheritance or settlement, which appears to be
public knowledge. I know you heard a paper on interest rates at your
last general meeting, and so are familiar with the 4%’s and the
comparative value of the pound and the cost of living. For example,
someone with an annual income of £l,000 would have had an
estate of £25,000 the estate would be worth approximately
£125,000 today, but the interest factor of say 15% would yield
£18,750 annual income. Richer or poorer, who can say?

With all Jane’s knowledge of land, interest, income, there is
never a mention of the Stock Exchange or the City in the novels.
Money is in land or in banks, but not in stocks.

The first and second decades of the 18th Century were marked by an
almost frenetic boom in company flotations which led to the famous
South Sea Bubble. The disastrous collapse of 1720, and the so-called
Bubble Act of the same year, our first Companies Act, which tried to
regulate joint stock companies, did much to sap public confidence in
joint stock companies and their securities for over 75 years. During
the remainder of the 18th Century, when the fortunes in our novels
would have been accumulated, although the mechanism of the stock
market was well understood and several rather half-hearted attempts
were made by the legislature to check its abuses, company shares do
not seem to have been generally regarded as suitable investments for
the lay public, but rather as a means of enabling the members of the
mercantile community to acquire a permanent stake in enterprises with
which they were familiar. The picture changed at the turn of the
century, when first the exigencies of war and then the growth of the
railway led to an outbreak of company promotion and of general
speculation comparable to that of the Bubble period. There was a
slump in 1808, and confidence was gradually restored until the boom
of 1824-1825, a period outside our time frame.

I referred earlier to married women’s inability to enter into
contracts or to maintain or defend law suits. Though she was single,
it was Jane’s father and brother, Henry, who approached
publishers and made her publishing contracts for her.

Elopements play a part in the novels: Willoughby
and Miss Williams in Sense &
Sensibility, Wickham’s attempt
with Georgiana Darcy and his success with Lydia Bennet; and Maria
Bertram with Henry Crawford in Mansfield
Park. The Letters often refer to
elopements, or to gentlemen taking mistresses. Yet, Jane doesn’t
seem to disapprove – the almost universal admiration for Lord
Nelson which included acknowledging his relationship with Lady
Hamilton may have dispelled this. If it is the navy, well then,
that’s life! Jane, however, was surely aware of something the
average modern reader is not – the extreme difficulty of
obtaining a decree absolute of divorce. The only divorces I can
recall mentioned are Maria Bertram’s and Eliza Brandon’s.
Poor Eliza, to be married to Colonel Brandon’s brother,
because the encumbered Brandon estate needed her fortune! Orphaned
in infancy under the guardianship and protection of Colonel Brandon’s
father. On the point of eloping to Scotland with the Colonel, but
betrayed by a maid. Divorced, going from seducer to seducer. Traced
by the Colonel to a debtor’s prison, dying of consumption.
Little Eliza, the illegitimate child of her first seducer, eloping
with Willoughby, in turn abandoned and left with an illegitimate
child. Mrs. Jennings, of course, decided that Miss Williams was the
Colonel’s natural daughter. Jane Austen does not really bring
moral censure to bear upon Willoughby, the Colonel, or Wickham for
the elopements, or upon Jane Fairfax and Frank Churchill for their
concealed engagement. There are no criminals in the novels; perhaps
a suggestion in the wayward gypsies in Emma,
or in Wickham’s “white collar fraudulent activities,”
but no mention of actual criminal activities.

Emma Woodhouse devoted so much of her time to the
illegitimate Harriet Smith, and Jane Austen was never castigated.
Yet, Thomas Hardy, the most chaste of writers, was banned for many
years, because he wrote of Tess and her illegitimate child and was
suspected of religious doubt in Jude the
Obscure.

Eliza Williams is referred to as “a natural
daughter.” “Harriet Smith was the natural daughter of
somebody.
Somebody
had placed her several years back at Mrs. Goddard’s school, and
somebody
had lately raised her from the condition of scholar to that of
parlour boarder. This was all that was generally known of her
history.” Jane ironically keeps referring to her as somebody’s
child, which shows she is playing on
the legal term for a bastard – filius
nullius – nobody’s child.

When Emma and Mr. Knightley disagree about the
merits of a match between Harriet and Robert Martin, this is made
clear. Mr. Knightley calls her “the natural daughter of nobody
knows whom, with probably no settled
provision at all and certainly no respectable relations. She is
known only as a parlour boarder at a common school.”

Emma: “Mr. Martin may be the richest of the two,
but he is undoubtedly her inferior as to rank in society. The sphere
in which she moves is much above his. It would be a degradation.”

Mr. Knightley: “A degradation to illegitimacy and
ignorance to be married to a respectable, intelligent, gentleman
farmer!”

Emma: “As to the circumstances
of her birth, though in a legal sense she may be called Nobody, it
will not hold in common sense. She is not to pay
for the offense of others, by being held below the level of those
with whom she is brought up. There can scarcely be a doubt that her
father is a gentlemen – and a gentleman of fortune. Her
allowance is very liberal; nothing has ever been grudged for her
improvement or comfort.”

Mr. Knightley: “Whoever might be her parents,
whoever may have had the charge of her, it does not appear to have
been any part of their plan to introduce her into what you would call
good society.”

Emma assumes she is the child of a gentleman and prepares her for
marriage accordingly. When she accepts Farmer Martin, her parentage
becomes known.

“She proved to be the daughter of a tradesman,
rich enough to afford her the comfortable maintenance which had ever
been hers, and decent enough to have wished always for concealment.
Such was the blood of gentility which Emma had formerly been so ready
to vouch for! It was unlikely to be as untainted, perhaps, as the
blood of many a gentleman: but what a connection had she been
preparing for Mr. Knightley, or for the Churchills, or even for Mr.
Elton! The stain of illegitimacy, unbleached by nobility or wealth,
would have been a stain indeed.”

Then, illegitimate children had no rights to inherit; now, they are
equal before the law with their legitimate brothers and sisters. No
more need for secret trusts and private arrangements.

Because divorce in 1800 was difficult to obtain, very public and very
expensive, divorce, remarriage, and children of second marriages
(unless acquired through death of a spouse) are rarely discussed.
Instead, the novels deal with elopements, and very occasionally
natural children; the Letters mention mistresses.

Until the Matrimonial Causes Act of 1857, the
English civil courts lacked the jurisdiction to grant divorces.
Until then, matrimonial causes were the preserve of the
Ecclesiastical Courts. However, these courts had only the power to
grant a decree of judicial separation – divorce a
mensa et thoro, only – i.e.,
separation from bed and board. Dissolution of marriage, divorce a
vinculo matrimonii (from the chains of
marriage) was not within their jurisdiction. Matrimonial causes had
been the exclusive jurisdiction of the Ecclesiastical Courts since at
least the 13th-Century.

This meant that it was canon law rather than
common law or even Roman civil law that shaped the law of divorce in
England. Before the Reformation, because marriage was regarded as a
sacrament, it was virtually impossible to obtain a divorce a
vinculo. Only the Pope could dissolve
a valid marriage and this was rare. However, decrees of nullity were
frequently granted. After Henry VIII, who put relations between
church and state on a new basis, the right of appeal to Rome was
abolished, and nullity proceedings were tightened up.

While divorce a
vinculo was unobtainable from the
Ecclesiastical Courts, there was a remedy to Englishmen who wanted
their marriages dissolved. This was by resort to a private Act of
Parliament specifically dissolving their marriage. This expensive
procedure was very seldomly used, and between 1715 and 1852, the
number of such divorces averaged less that two a year.

In 1798, the process of parliamentary divorce was
rendered more difficult and more expensive. After that date, all
petitions for a private bill had to be supported by a divorce a
mensa et thoro from the Ecclesiastical
Courts, and by a verdict of damages for criminal conversation brought
against the wife’s seducer in the Common Law Courts, or to show
circumstances explaining their absence. Adultery was the only ground
upon which a petition could be presented, and normally relief was
granted only a husband. There are only four cases of relief being
granted to a wife and those concerned circumstances of aggravated
enormity. It is significant to note, however, that care was taken
that the wife was not left destitute. The House of Commons possessed
an official, known as the “Ladies Friend,” whose task it
was to ensure that a husband made “suitable but moderate
provision” for his divorced wife.

I would be inclined to suggest to you that Colonel Brandon’s
Eliza was divorced in the Ecclesiastical Courts only – a
judicial separation, since no mention is made of remarriage, and the
parliamentary Ladies Friend would have seen that she received some
suitable, if moderate provision in addition to her private income,
and have prevented her from languishing in a spunging house.

The law is but a small part of the tapestry of the novels. Elinor
and Marianne would have faced the same problems at Norland as they
did at Barton Cottage; the Bennet girls would all be seeking husbands
from Longbourn or elsewhere. But it is the knowledge of the laws
linking the Englishman to his property, of the intricacies of wills
and settlement, the tolerance of man’s failings that give the
universal reality to the works, and do not date them with the faded
chintz of another day.